Impartial Investigations Are the Foundation of Equitable Proceedings for Complainants and Respondents
An impartial and fair investigation is the foundation of an equitable adjudication. In a recent guidance, the Office for Civil Rights reaffirmed, “The school must conduct an adequate, reliable, and impartial investigation that provides the parties with an equal opportunity to present witnesses and other evidence.”[1]
Because the investigative process is subject to less oversight than the adjudication, investigative bias can be difficult to discern. Unfortunately, biased investigative philosophies known as “victim-centered,”[2] “trauma-informed,”[3] or “Start By Believing”[4] are believed to be commonly utilized in campus investigations. These conviction-oriented philosophies presume the guilt of the respondent and engender confirmation bias.[5]
Trauma-informed concepts, in particular, have been derided as circular and unscientific:
- Title IX: The Big Mess on Campus[6]
- Title IX and “Trauma-Focused” Investigations: The Good, the Bad, and the Ugly[7]
- Best-Practice Interviewing Spans Many Contexts[8]
- Title IX Investigations: The Importance of Training Investigators in Evidence-Based Approaches to Interviewing[9]
Flawed campus investigations have shortchanged both complainants and the accused. At Baylor University in Texas, for example, complainants reported alleged assaults to the athletic coaches of the accused harassers, but those claims were ignored and not investigated.[10]
For these reasons, the 2020 Title IX regulation contains essential language about the need for truthful investigations:[11]
A recipient must ensure that Title IX Coordinators, investigators, decision-makers, and any persons who facilitate an informal resolution process, receive training on….. how to serve impartially, including avoiding prejudgment of the facts at issue, conflicts of interest, and bias… recipient also must ensure that investigators receive training on issues of relevance to create an investigative report that fairly summarizes relevant evidence. Any materials used to train Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process, must not rely on sex stereotypes and must promote impartial investigations and adjudications of formal complaints of sexual harassment. [emphasis added]
In 2019, SAVE established an online petition devoted to the need for impartial campus investigations. [12] To date, 5,131 persons have signed the petition.[13]
SAVE urges the Office for Civil Rights to retain the existing language at Section 106.45 (b)(1), and to issue additional policy directives designed to rein in guilt-presuming “victim-centered” investigations.
Citations:
[1] Office for Civil Rights Question (May 13, 2021). Questions and Answers on Civil Rights and School Reopening in the COVID-19 Environment. Question 26. https://www2.ed.gov/about/offices/list/ocr/docs/qa-reopening-202105.pdf
[2] SAVE (2016), Victim-Centered Investigations: New Liability Risk for Colleges and Universities. https://www.saveservices.org/wp-content/uploads/Victim-Centered-Investigations-and-Liability-Risk.pdf
[3] Center for Prosecutor Integrity, Trauma-Informed: Junk Science. http://www.prosecutorintegrity.org/sa/trauma-informed/
[4] Center for Prosecutor Integrity, Start by Believing: Ideology of Bias. http://www.prosecutorintegrity.org/sa/start-by-believing/
[5] Simply Psychology (2020). Confirmation Bias. https://www.simplypsychology.org/confirmation-bias.html
[6] Garry, Maryanne. Title IX: The Big Mess on Campus. Journal of Applied Research in Memory and Cognition (8, 2019): 411-412. https://www.saveservices.org/wp-content/uploads/TitleIX-TheBigMessonCampus.pdf
[7] Davis, Deborah & Loftus, Elizabeth. Title IX and “Trauma-Focused” Investigations: The Good, The Bad, and the Ugly. Journal of Applied Research in Memory and Cognition (8, 2019): 403-410. https://www.saveservices
.org/wp-content/uploads/TitleIXand%E2%80%9CTrauma-Focused%E2%80%9DInvestigations-TheGood
TheBadandtheUgly.pdf
[8] Brubacher, Sonja P. & Powell, Martine B. Best-Practice Interviewing Spans Many Contexts. Journal of Applied Research in Memory and Cognition (8, 2019): 398-402. https://www.saveservices.org/wp-content/uploads/Best-PracticeInterviewingSpansManyContexts.pdf
[9] Meissner, Christian A. & Lyles, Adrienne M. Title IX Investigations: The Importance of Training Investigators in Evidence-Based Approaches to Interviewing. Journal of Applied Research in Memory and Cognition (8, 2019): 389-397. https://www.saveservices.org/wp-content/uploads/TitleIXInvestigations-TheImportanceofTrainingInvestigatorsinEvidence-BasedApproachestoInterviewing.pdf
[10] Lavigne, Paula (July 13, 2018), Baylor University settles Title IX lawsuit in which gang rape by up to 8 football players was alleged. http://www.espn.com/college-football/story/_/id/24090683/baylor-university-settles-title-ix-lawsuit-which-gang-rape-8-football-players-was-alleged
[11] Section 106.45 (b)(1).
[12] SAVE, ‘One of the worst days of my life:’ Stop sham ‘Start By Believing’ investigations. https://www.change.org/p/congress-stop-sham-believe-the-victim-investigations . Accessed June 3, 2021.
[13] https://www.saveservices.org/wp-content/uploads/2021/06/2.-Petition-signatures-Attachment-B-6.6.2021.pdf